Memo: How Cities Can Protect Public Health When States Stand in the Way
By Richard Schragger Perre Bowen Professor of Law, University of Virginia School of Law and Dilini Lankachandra Director, A Better Balance’s Defending Local Democracy Project
Introduction
Cities play a vital role in protecting the health and safety of their residents. But they have been increasingly thwarted by their own state governments, thanks to a relatively recent uptick in “preemption,” where a higher level of government uses either executive authority or legislation to limit the authority of a lower level of government. In Atlanta, for example, Mayor Keisha Lance Bottoms has been consistently stymied in her efforts to fight the COVID-19 pandemic with mask regulations and business closures by a state policy that prioritizes reopening the economy.
Preemption can be an important and useful tool when it’s used to create a “floor” of protections that apply state or nationwide. The Civil Rights Act of 1964 is a prime example: It preempts discriminatory state and local laws. But states are increasingly using preemption to create a regulatory vacuum rather than a regulatory floor, leading to situations where a state both refuses to act on a certain issue and forbids localities from doing so themselves.
This trend is most pronounced in conservative states that are home to more progressive cities and plays out across different issues, from minimum wage increases and “sanctuary city” policies that protect undocumented people to plastic bag regulations and antidiscrimination laws. And preemption is on the rise. Since 2010, more preemptive laws have been introduced every year, some going as far as punishing cities and local elected officials that try to enact preempted policies.
Preemption has been especially prevalent in the South: The only three states that prohibit local nondiscrimination ordinances are Tennessee, North Carolina,4 and Arkansas; nearly every Southern state preempts local minimum wage increases and paid sick leave requirements; and almost as many states preempt rent control and inclusionary housing policies.
